Case :0-cv-0-RLH -PAL Document Filed /0/0 Page of 0 SHAWN A. MANGANO, ESQ. Nevada Bar No. 0 shawn@manganolaw.com SHAWN A. MANGANO, LTD. 0 West Cheyenne Avenue, Suite 0 Las Vegas, Nevada -0 (0) - telephone (0) - facsimile J. CHARLES COONS, ESQ. Nevada Bar No. 0 ccoons@righthaven.com Assistant General Counsel at Righthaven LLC Righthaven LLC 0 West Cheyenne Avenue, Suite 0 Las Vegas, Nevada -0 (0) -00 Attorneys for Plaintiff Righthaven LLC UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 0 RIGHTHAVEN LLC, a Nevada limitedliability company, v. Plaintiff, THOMAS A. DIBIASE, an individual, Defendant. AND RELATED COUNTERCLAIM Case No.: :0-cv-0-RLH-PAL COUNTER-DEFENDANT RIGHTHAVEN LLC S MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE COUNTERCLAIM PURSUANT TO FED. R. CIV. P. (b)() AND FED. R. CIV. P. (f) Counter-defendant Righthaven LLC ( Righthaven ) hereby moves to dismiss that portion of Thomas A. DiBiase s ( DiBiase ) responsive pleading which is entitled a counterclaim (the Counterclaim ) (Doc. # at -) pursuant to Rule (b)() of the Federal Rules of Civil Procedure ( Rule (b)() ). Alternatively, Righthaven moves to strike the Counterclaim pursuant to Rule (f) of the Federal Rules of Civil Procedure ( Rule (f) ).
Case :0-cv-0-RLH -PAL Document Filed /0/0 Page of 0 Righthaven s submission is based on the below Memorandum of Points and Authorities, the pleadings and papers on file in this action, any oral argument allowed by this Court, and on any other matter of which this Court takes notice. Dated this st day of December, 00. SHAWN A. MANGANO, LTD. By: /s/ Shawn A. Mangano SHAWN A. MANGANO, ESQ. Nevada Bar No. 0 shawn@manganolaw.com 0 West Cheyenne Avenue, Suite 0 Las Vegas, Nevada -0 Tel: (0) - Fax: (0) - J. CHARLES COONS, ESQ. Nevada Bar No. 0 ccoons@righthaven.com Assistant General Counsel at Righthaven LLC Righthaven LLC 0 West Cheyenne Avenue, Suite 0 Las Vegas, Nevada -0 (0) -00 Attorneys for Plaintiff Righthaven LLC 0 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Righthaven asks the Court to dismiss, pursuant to Rule (b)(), or strike, pursuant to Rule (f), DiBiase s Counterclaim (Doc. # at -), which seeks a declaratory relief finding of non-infringement. (Id. at.) Righthaven has moved for this relief because the Counterclaim alleges no new material facts and introduces no new claims for relief from those already before the Court in the parties pleadings. As the Court is aware, Righthaven has filed a copyright infringement claim against DiBiase. (Doc. #.) If Righthaven fails to prevail on its copyright infringement claim, DiBiase will obtain a judgment of non-infringement in his favor. DiBiase has denied Righthaven s claim in his answer. (Doc. #.) In fact, DiBiase specifically denied that he had committed copyright infringement in answering the Complaint. (Doc. # at 0, Mr. DiBiase denies that he has
Case :0-cv-0-RLH -PAL Document Filed /0/0 Page of committed copyright infringement. ) DiBiase has also asserted twelve affirmative defenses in response to Righthaven s copyright infringement allegations. (Doc. # at -.) Based on these facts, and in view of the authorities cited herein, DiBiase s Counterclaim, which is predicated on the Declaratory Judgment Act (Id. at ), is a superfluous and unnecessary filing that should be dismissed or stricken. Righthaven respectfully requests the Court to take such action pursuant to Rule (b)() or Rule (f). II. FACTS 0 0 Righthaven filed this copyright infringement action on August, 00. (Doc. #.) Righthaven asserts that it is the owner of the copyrighted literary work entitled: Man who killed wife sought ultimate sentence (the Work ). (Doc. # - at -; Compl. Ex..) The Work was granted registration by the United States Copyright Office on July, 00. (Doc. # - at - ; Compl. Ex..) Righthaven contends that DiBiase is the owner of the Internet domain, and maintains control of the content posted at same, found at <nobodycases.com> (the Website ). (Doc. # at ; Compl. at.) Righthaven further asserts that on or about June, 00, DiBiase displayed an unauthorized 00% reproduction of the Work on the Website. (Doc. # at, Doc. - at -; Compl. at, Ex..) Based on the alleged infringement of the Work, Righthaven seeks, among other things, entry of a permanent injunction and an award of statutory damages against DiBiase. (Id. at -.) Righthaven has demanded a jury trial in this case. (Id. at.) On October, 00, DiBiase answered the Complaint. (Doc. #.) DiBiase s answer specifically denied that he had committed copyright infringement. (Id. at 0, Mr. DiBiase denies that he has committed copyright infringement. ). DiBiase s answer also asserted numerous affirmative defenses, including failure to state a claim upon which relief can be granted and innocent intent. (Id. at -.) DiBiase s responsive pleading additionally asserted the Counterclaim, which Righthaven asks the Court to dismiss or strike. (Id. at -.) The relief sought in the Counterclaim is exclusively in the form of a declaratory judgment of non-infringement of the Work asserted in
Case :0-cv-0-RLH -PAL Document Filed /0/0 Page of Righthaven s Complaint. (Doc. # at -, -.) No other copyright protected works are atissue in the Counterclaim. (Id. at -.) DiBiase substantively predicates this relief on the Declaratory Judgment Act. (Id. at.) As argued below, the Court should dismiss or strike the Counterclaim because it is unnecessary and duplicative of the issues already presented in the Complaint, DiBiase s answer and the affirmative defenses asserted. III. APPLICABLE STANDARDS A. Federal Rule of Civil Procedure (b)() Standards. 0 0 Rule (b)() authorizes a party to bring a motion to dismiss on the basis that asserted allegations fail to state a claim upon which relief can be granted. FED.R.CIV.P. (b)(). Federal pleadings merely require a short and plain statement of the claim and the factual grounds upon which it rests so as to provide the defending party with fair notice of the allegations made against it. See Bell Atlantic Corp. v. Twombly, 0 U.S. (00); Conley v. Gibson, U.S., (). In deciding a Rule (b)() motion, the court must accept all material allegations in the complaint as well as any reasonable inferences to be drawn from them as true. Doe v. United States, F.d 0, 0 (th Cir. 00); Ecology v. United States Dep t of Air Force, F.d 0, 0 (th Cir. 00). A declaratory relief counterclaim which merely mirrors the allegations already placed at-issue by the pleading may be dismissed pursuant to Rule (b)(). See Englewood Lending Inc. v. G&G Coachella Invs., LLC, F.Supp.d, (C.D. Cal. 00). Righthaven asserts the Court should dismiss the Counterclaim pursuant to Rule (b)() as argued below. B. Federal Rule of Civil Procedure (f) Standards. A party may move to strike a redundant pleading pursuant to Rule (f). FED.R.CIV.P. (f). For purposes of deciding a Rule (f) motion, redundant has been defined as including allegations or claims that are needlessly repetitive. See Gilbert v. Eli Lilly Co., Inc., F.R.D., 0 n. (D. P.R. ). As with a motion to dismiss under Rule (b)(), the court must view the pleading under attack in the light most favorable to the pleader when deciding a motion
Case :0-cv-0-RLH -PAL Document Filed /0/0 Page of to strike under Rule (f). Discretion to strike the challenged pleading lies entirely within the court s sound discretion and the moving party need not demonstrate prejudice to be afforded the relief requested under Rule (f). See Fantasy, Inc. v. Fogerty, F.d, ( th Cir. ) (rev d on other grounds in Fogerty v. Fantasy, Inc, 0 U.S., - ()); California v. United States, F.Supp., (N.D. Cal. ). A declaratory relief counterclaim which simply replicates the issues already defined by the pleadings may be stricken under Rule (f). See, e.g., Tenneco Inc. v. Saxony Bar & Tube, Inc., F.d, (th Cir. ). Righthaven asserts the Court should dismiss the Counterclaim pursuant to Rule (f) as argued below as an alternative to its request for dismissal under Rule (b)(). 0 IV. ARGUMENT A. The Court is Empowered to Dismiss or Strike a Declaratory Relief Counterclaim Which Merely Mirrors the Allegations of the Pleadings Before It. 0 Federal procedural law governs DiBiase s Counterclaim as it seeks declaratory relief. See Golden Eagle Ins. Co. v. Travelers Companies, 0 F.d 0, (th Cir. ); Englewood Lending Inc., F.Supp.d at ; DeFeo v. Procter & Gamble Co., F.Supp., (N.D. Cal. )( The propriety of granting declaratory relief in federal court is a procedural matter. ). Adjudication of rights under the Declaratory Judgment Act is completely discretionary. See U.S.C. 0 ( any court of the United States... may declare the rights... of any interested party whether or not further relief is or could be sought ); Chesebrough- Pond s, Inc. v. Faberge, Inc., F.d, (th Cir. )( Declaratory relief is available at the discretion of the district court. ); Solenoid Devices, Inc. v. Ledex, Inc., F.d, (0th Cir. )( In the federal declaratory judgment cases, the word may [in U.S.C. 0] has never been held to uniformly mean shall. ); Englewood Lending Inc., F.Supp.d at. The Court has discretion to dismiss... pursuant to Rule (b)() a declaratory relief counterclaim which mirrors the complaint or which raises the same factual and legal issues as those placed at-issue through asserted affirmative defenses or denials of allegations. See
Case :0-cv-0-RLH -PAL Document Filed /0/0 Page of 0 0 Englewood Lending Inc., F.Supp.d at. Alternatively, courts have repeatedly stricken counterclaims pursuant to Rule (f) which raise the same facts and legal issues as those asserted via affirmative defenses, or which constitute a mirror image of the original complaint. See, e.g., Tenneco Inc., F.d at ; Lincoln National Corp. v. Steadfast Insurance Co., 00 WL 0 (N.D. Ind. June, 00) ( Indeed, repetitious and unnecessary pleadings, such as a counterclaim that merely restates an affirmative defense, or which seeks the opposite effect of the complaint, should be stricken regardless of whether prejudice has been shown. ); Ortho- Tain, Inc. v. Rocky Mountain Orthodontics, Inc., 00 WL (N.D. Ill. Dec. 0, 00); see also Stickrath v. Globalstar, Inc., 00 WL 000, at * (N.D. Cal. May, 00). As Judge Easterbrook explained in Tenneco Inc.: The label counterclaim has no magic. What is really an answer or defense to a suit does not become an independent piece of litigation because of its label. Fed.R.Civ.P. (c); Hartford v. Romeo, 0 F.d 0, 0 (d Cir. ); Office & Professional Employees Union v. Allied Industrial Workers Union, F.Supp., (E.D. Wisc. ), aff d, F.d (th Cir. ); Old Colony Insurance Co. v. Lampert, F.Supp. (D.N.J.), aff d, F.d 0 (d Cir. ).... When the original complaint puts in play all of the factual and legal theories, it makes no difference whether another party calls its pleadings counterclaims, affirmative defenses, or anything else. The original complaint brought the dispute into court, and the parties to that complaint are parties to each aspect of the imbroglio. Tenneco Inc., F.d at. Dismissal of a declaratory relief claim which seeks relief that is merely duplicative of the issues already pending before the court promotes, among other things, efficient judicial administration. See, e.g., Stickrath, 00 WL 000, at *. As the United States District Court for the Northern District of California explained in Stickrath: [I]f a district court, in the sound exercise of its judgment, determines after a complaint is filed that a declaratory judgment will serve no useful purpose, it cannot be incumbent upon that court to proceed to the merits before... dismissing the action. Although federal courts normally should adjudicate all claims within their discretion, in the declaratory judgment context this principle yields to considerations of practicality and wise judicial administration. District courts have dismissed counterclaims under the Declaratory Judgment Act where they have found them to be
Case :0-cv-0-RLH -PAL Document Filed /0/0 Page of Id. repetitious of issues already before the court via the complaint or affirmative defenses. As argued below, DiBiase s declaratory relief Counterclaim mirrors the denials contained in his answer, as well as his asserted affirmative defenses, and necessarily involves the resolution of issues already before the Court. Accordingly, the Counterclaim should be dismissed pursuant to Rule (b)() or stricken pursuant to Rule (f). 0 0 B. DiBiase s Declaratory Relief Counterclaim Should be Dismissed or Stricken as it is Duplicative of the Pleadings Already Before the Court. As argued above, the Court is clearly empowered to dismiss or strike a declaratory relief counterclaim which mirrors the claims and affirmative defenses already pending before it. This is precisely the nature of DiBiase s Counterclaim a duplicative, superfluous filing that is completely devoid of any unique claims or issues which require adjudication beyond those currently before the Court. Accordingly, the Counterclaim should be dismissed or stricken. As set forth earlier in this filing, the relief sought in the Counterclaim is a declaratory judgment of non-infringement of the Work, which serves as the basis for Righthaven s infringement claim against DiBiase. (Doc. # at -, -; Doc. # at ; Compl. at.) No other copyright protected works are at-issue in the Counterclaim. (Doc. # at -.) DiBiase predicates his requested relief on the Declaratory Judgment Act. (Id. at.) As such, DiBiase s declaratory relief claim can only be maintained if, in the Court s discretion, there is a basis for doing so. See Chesebrough-Pond s, Inc., F.d at ; Solenoid Devices, Inc., F.d at ; Englewood Lending Inc., F.Supp.d at. Stated alternatively, DiBiase s declaratory relief claim is not automatically exempt from dismissal or from being stricken merely because it is predicated on the Declaratory Judgment Act. Id. In fact, dismissal of the Counterclaim is warranted in view of DiBiase s answer and his asserted affirmative defenses, all of which preserve his perceived entitlement to a finding of non-infringement. To begin with, DiBiase has expressly denied having engaged in copyright infringement in answering the Complaint. (See, e.g., Doc. # at 0, Mr. DiBiase denies that he has
Case :0-cv-0-RLH -PAL Document Filed /0/0 Page of committed copyright infringement. ) In addition to his denials, DiBiase has also asserted numerous affirmative defenses, including the failure to state a claim upon which relief can be granted and innocent intent. (Doc. # at -.) All of the denials of the allegations against him and the affirmative defenses asserted by him are done for the express purpose of defeating Righthaven s copyright infringement claim. If successful on any of these denials or defenses, DiBiase would be granted a judgment of non-infringement in his favor. This is precisely the relief sought in his declaratory relief Counterclaim. (Id. at -, -.) Accordingly, DiBiase s Counterclaim is completely redundant and should be dismissed or stricken by the Court. 0 0 V. CONCLUSION For the foregoing reasons, Righthaven respectfully requests the Court dismiss DiBiase s Counterclaim pursuant to Rule (b)(). Alternatively, Righthaven respectfully requests the Court strike DiBiase s Counterclaim pursuant to Rule (f) along with granting such relief as the deemed proper and just. Dated this st day of December, 00. SHAWN A. MANGANO, LTD. By: /s/ Shawn A. Mangano SHAWN A. MANGANO, ESQ. Nevada Bar No. 0 shawn@manganolaw.com 0 West Cheyenne Avenue, Suite 0 Las Vegas, Nevada -0 Tel: (0) - Fax: (0) - J. CHARLES COONS, ESQ. Nevada Bar No. 0 ccoons@righthaven.com Assistant General Counsel at Righthaven LLC Righthaven LLC 0 West Cheyenne Avenue, Suite 0 Las Vegas, Nevada -0 (0) -00 Attorneys for Plaintiff Righthaven LLC
Case :0-cv-0-RLH -PAL Document Filed /0/0 Page of CERTIFICATE OF SERVICE Pursuant to Federal Rule of Civil Procedure (b), I hereby certify that I am a representative of Righthaven LLC and that on this st day of December, 00, I caused the COUNTER-DEFENDANT RIGHTHAVEN LLC S MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE COUNTERCLAIM PURSUANT TO FED. R. CIV. P (b)() AND FED. R. CIV. P. (f) to be served by the Court s CM/ECF system. 0 SHAWN A. MANGANO, LTD. By: /s/ Shawn A. Mangano SHAWN A. MANGANO, ESQ. Nevada Bar No. 0 shawn@manganolaw.com 0 West Cheyenne Avenue, Suite 0 Las Vegas, Nevada -0 Tel: (0) - Fax: (0) - J. CHARLES COONS, ESQ. Nevada Bar No. 0 ccoons@righthaven.com Assistant General Counsel at Righthaven LLC Righthaven LLC 0 West Cheyenne Avenue, Suite 0 Las Vegas, Nevada -0 (0) -00 Attorneys for Plaintiff Righthaven LLC 0